2. Bail above. Sureties who bind them selves either to satisfy the plaintiff his debt and costs, or to surrender the defendant into custody, provided judgment be against him in the action and he fail to do so. SelloN , Pract. 137.
' Bail to the action. Bail above.
Bail below. Sureties who bind themselves to the sheriff to secure the defendant's appear ance, or his putting in bail to the action on the return-day of the writ. It may be de manded by the sheriff whenever she has ar rested a defendant on a bailable process, as a prerequisite to releasing the defendant.
Civil bail. That taken in civil actions.
Common bail. Fictitious sureties formally entered in the proper office of the court.
It is a kind of bail above, similar in form to spe cial bail, but having fictitious persons, John Doe and Richard Roe, as sureties. Filing common bail is tantamount to entering an appearance.
Special bail. Responsible sureties who un dertake as bail above.
3. _Requisites of. person to become bail must, in England, be a freeholder or house keeper, 2 Chitt. Bail, 96; 5 Taunt. 174; Lofft, 148 ; must be subject to process of the court, and not privileged from arrest either tempo rarily or permanently, 4 Taunt. 249; 1 Dowl. & R. 127; 15 Johns. N. Y. 535; 20 id. 129; Kirb. Conn. 209; see 3 Rich. So. C. 49 ; must be competent to enter into a contract, exclu ding infants, married women, etc.; must be able to pay the amount for which he becomes responsible, but the property may be real or personal if held in his own right, 2 Chitt. Bail, 97; 11 Price, Exch. 158, and liable to ordinary legal process. 4 Burr. 2526. And see 1 Chitt. 286, n.
Persons not excepted to as appearance bail cannot be objected to as bail above, 1 Hen. & M. Va. 22; and bail, if of sufficient ability, should not be refused on account of the per character or opinions of the party proposed. 4 Q. B. 468; 1 Bennett & H. Lead. Crim. Cas. 236.
4. When it may be given or required. In civil actions the defendant may give bail in all cases where he has been arrested, 7 Johns. N. Y. 137; and bail below, even, may be demanded in some cases where no arrest is made. 1 Harr. & J. Md. 538; 2 M'Cord, So. C. 250.
Bail above is required under some restric tions in many of the states in all actions for considerable' amounts, 2 M'Cord, So. C. 385 ; either common, 2 Yeates, Penn. 429; 1 Spenc.
N. J. 494; 13 Ill. 551, which may be filed by the plaintiff, and judgment taken by de fault against the defendant if he neglects to file proper bail, after a certain period, 8 Johns. N. Y. 359; 4 Cow. N. Y. 61; 2 South. N. J. 684; 4 Wash. C. C. 127 ; or special, which is to be filed of course in some species of action and may •be demanded in others, 1 M'Cord, So. C. 472; 17 Mass. 176 ; 1 Yeates, Penn. 280; 13 Johns. N. Y. 305, 425; 1 Wend. N. Y. 303; 4 Harr. & M'H. Md. 155; 2 Brev. So. C. 218; but in many cases only upon special cause shown. Coxe, N. J. 277; 3 Halst. N. J. 311; 2 Caines, N. Y. 47 ; 1 Browne, Penn. 297; 3 Binn. Penn. 283; 4 Rand. Va. 152.
5. The existence of a debt and the amount due, 8 Serg. & R. Penn. 61; 2 Whart. Penn. 499; 1 Mo. 346; 1 Leigh, Va. 476; 1 Penn. N. J. 46; 1 Blackf. Inc.. 112; 2 Johns. Cas. N. Y. 105 ; 3 Ga. 128; 10 Mo. 273, in an ac tion for debt, and, in some forms of action, other circumstances, must be shown by affida vit to prevent a discharge on common bail. 5 Halst. N. J. 331; 7 Cow. N. Y. 518 ; 1 Barb. N. Y. 247; 1 Blackf. Ind. 112; 8 Leigh, Va. 411; 16 Ohio, 304; 13 Ga. 357 ; see 1 Pet. C. C. 352; 2 Wash. C. C. 198; 4 id. 325. It is a general rule that a defendant who has been once held to bail in a civil case cannot be held a second time for the same cause of action, Tidd, Pract. 184; 8 Ves. Ch. 594; 4 Yeates, Penn. 206; 2 Rich. So. C. 336; but this rule does not apply where the second holding is in another state. 14 Johns. N. Y. 346; 2 Cow. N. Y. 626; 3 N. H. 43 ; 2 Dail. C. C. 330; 4 M'Cord, So. C. 485. See 1 Halst. N. J. 131. And see also 1 Dall. Penn. 188; 2 Wash. C. C. 157; 1 Pet. C. C. 404; 3 523; 3 Gill & J. Md. 54, as to the effect of a discharge in insolvency.
6. In criminal cases the defendant may in general claim to be set at liberty upon giving bail, except when charged with the commis sion of a capital offence, 4 Sharswood, Blaokst. Comm. 297; 6 Mo. 640; 1 M'Mull. So. C. 456; 3 Strobh. So. C.272; 18 Ala. 390; 9 Dan. Ky. 38; 9 Ark. 222 ; and even in capital offences a defendant may be bailed in the discretion of the court, in the absence of constitutional or statutory provisions to the contrary. 6 Gratt. Va. 705; 11 Leigh, Va. 665; 19 Ohio, 139; 8 Barb. N. Y. 158; 19 Ala. N. s. 561; 1 Cal.